TaxTMI 
TaxTMI 
2021 (3) TMI 413
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....med that there was default in payment of debt of Rs. 1,56,89,740/- on the part of the Corporate Debtor. The Appellant claimed to be assignee of the original lender to the Corporate Debtor. 2. The Appeal claims and it is argued that the Respondent - M/s Samtex Desinz Pvt. Ltd. was incorporated in 2018 consequent to four individuals - 1) Sameer Bharadwaj, 2) P.K. Bharadwaj, 3) Sumeer Duggal and 4) Sharad Duggal purchasing the Respondent which was at that time a sole proprietor. The Respondent was then incorporated as a Company. To meet the business expenses, Respondent had raised a loan of Rs. 14 Crores from M/s. Tata Capital Financial Services Ltd. That loan was a secured loan and the Respondent had mortgaged land, building, etc. in favour of M/s. Tata Capital Financial Services Ltd. Still the Respondent - Corporate Debtor required more funds for day to day working and development of business. Respondent approached open market and financial lenders but could not get additional debt. It is stated that in such circumstances, to ensure continued development of the business of Corporate Debtor, Mr. Sameer Bhardwaj - then Director of the Respondent, through sister concern - M/s. Samee....
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....tance under any acceptance credit facility or its de-materialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; (e) receivables sold or discounted other than any receivables sold on non-recourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; [Explanation.-For the purposes of this sub-clause,- (i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and (ii) the expressions, "allottee" and "real estate project" shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016);] (g) any derivative transact....
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.... - 7(d) states as under:- "d. In these circumstances to ensure continued development of the business of the Corporate Debtor, Mr. Sameer Bharadwaj, the then Director and the Current Authorized Signatory of the Respondent, through the sister concern advanced a sum of Rs. 1.60 Crore. It is submitted that in compliance with the law, the aforesaid sum was extended under a loan agreement, however the sum was advanced interest free, since the development of the business was enough consideration for time value of money." 6. Synopsis states and it is argued that it being related party transaction, the money was to be utilized by the Respondent for day to day activities and to develop business, and that same was consideration of time value of money. 7. We are unable to accept this argument because the term "time value of money" has to be a consideration for the Financial Creditor. How the Corporate Debtor will be using the money, cannot be stated to be the consideration for time value of money for the Financial Creditor. 8. The learned Counsel for the Appellant argued that the Adjudicating Authority wrongly recorded in Para - 17 of the Impugned Order that the Applicant has....
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.... and Others" (2019) 8 SCC 416 and referred to para - 71 and picked up portion where it is recorded that "when the money is disbursed, it is no longer with the allottee" and argued that the Hon'ble Supreme Court held that when money is disbursed and no longer with the person giving the money, it must be treated as financial debt. We do not find that picking up words in isolation would help the Appellant. The concerned sentence in the said Judgement reads as under:- "That this is against consideration for the time value of money is also clear as the money that is "disbursed" is no longer with the allottee, but, as has just been stated, is with the real estate developer who is legally obliged to give money's equivalent back to the allottee, having used it in the construction of the project, and being at a discounted value so far as the allottee is concerned (in the sense of the allottee having to pay less by way of instalments than he would if he were to pay for the ultimate price of the flat/apartment)." 12. It is quite clear that the observations are in the context of allottees and the portion of the Judgement reproduced above itself makes it clear that when: allottee di....
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.... Samtex Desinz (Proprietorship Firm), the Borrower had availed of a term loan of Rs. 14,00,00,000.00(Fourteen Crore Only) from M/s Tata Capital Financial Services Ltd., vide which all the assets of the Borrower have been mortgaged/assigned in favour of the aforesaid institutional lender. That the aforesaid term facility is insufficient to cover certain working capital requirements of the Borrower and is insufficient to meet certain other requirements relating to payments stamp duty etc. of SAMTEX DESINZ PRIVATE LIMITED Director/Auth. Sign. Director Sameer Sales Private Limited 122 Tribhuvan Complex tar Naga thaira Road, New Delhs HG 565 www.sarneersalespro.com True Copy Tynd spy for ty, the Document 2 the Borrower and that therefore there is a shortfall of Rs. 2,00,00,000.00 (Two Crore Only) 2. That because of the aforesaid loan from the M/s Tata Capital no other institutionis willing to extend unsecured loan to the Borrower, and therefore it is agreed that the lender is agreeable to extend a foan of Rs. 1,60,00,000.00(One Crore Sixty Lakh Only)in favour of the Borrower. TERMS AND CONDITIONS 1. The Lender agrees....